R v Murray

[2019] NSWDC 687

District Court

New South Wales

Medium Neutral Citation:	R v Murray [2019] NSWDC 687
Hearing dates:	11-12, 22 March 2019
Date of orders:	22 March 2019
Decision date:	22 March 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See [34], [35], [37].
Catchwords:	CRIME. SENTENCE.   Supply 5.09 grams of methylamphetamine. Deemed supply but evidence indicating an intention to supply. 39 year old woman of prior good character with a compelling personal circumstance. Conviction not recorded. Conditional Release Order for 18 months.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Murray [2019] NSWDC 63
Category:	Sentence
Parties:	Jessica Murray – Offender   Regina – The Crown
Representation:	(Cr)   Mr A Nievas Solicitors for ODPP         (Off)   Mr T Woods Just Defence Criminal & Family Lawyers
File Number(s):	2016/00377646
Publication restriction:	Nil.

Sentence

1. HIS HONOUR: This afternoon Jessica Murray stands for sentence. Initially Ms Murray’s trial was listed to commence before me on 11 February 2019. The offender had pleaded not guilty to a charge for which I must sentence her today. She was due to stand trial before a judge and jury on 11 February 2019. On that day there was pre-trial arguments as to the admissibility of evidence I ruled on those: [2019] NSWDC 63. On the following morning, 12 February 2019, I was asked to grant the parties time and eventually the offender pleaded guilty to the charge contained in the indictment which had been presented on 11 February 2019.

2. The charge in the indictment is that on 16 December 2015 at Dee Why in this State, the offender did supply a prohibited drug namely 5.09 grams of methylamphetamine. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment, and or a fine of $220,000. There is no standard non-parole period. At this sentencing hearing the offender also asks me to take into account, on a Form 1, the possession of 0.34 grams of methylamphetamine which were found on her person or in her wallet at the time of the finding of the other methylamphetamine that is the subject of the count in the indictment. Because of the quantum of the drug found at the time of the offence, that is the 5.09 grams of methylamphetamine, this is a case of deemed supply of that drug.

3. At about 9.15pm on 16 December 2016 the offender was seated in the driver’s seat of her white Subaru station wagon. She was parked close to premises at 27 May Road, Dee Why. The occupant of that address Mr Dane Cvijanovic was sitting in the passenger seat at that time. In the stationary car the interior light was illuminated. It is to be pointed out that Mr Cvijanovic was the offender’s “partner” at this time, that is, that they were living together as man and wife. Two New South Wales Police officers had been given the job of serving a subpoena upon Mr Cvijanovic. They pulled up in their car and approached the offender’s vehicle on its driver’s side. The police observed that Mr Cvijanovic was holding a large wad of cash and a lady’s wallet. The cash was largely one hundred dollar and fifty dollar notes. From my ruling on the voir dire the total amount of the money was $1,950. The police from their prior dealings with both the offender and Mr Cvijanovic knew that they were in a domestic relationship. I should point out that the offender has no prior criminal record. She was only known to the police because of her having been a victim of domestic violence practised upon her by earlier partners.

4. The police were obviously suspicious about the large amount of cash which Mr Cvijanovic was holding. Detective Senior Constable Katherine Bock, on approaching the driver’s side window, asked the offender if there were any drugs in her car. That request was made a number of times. Shortly after the initial question was asked the offender was seen to drop a resealable bag onto the floor of the car next to her foot. Detective Senior Constable Bock then asked the offender to get out of her car because the Detective Senior Constable wished to search her. The offender alighted from her vehicle and removed a small resealable bag from within her bra and gave it to Detective Senior Constable Bock. That bag contained 0.08 grams of methylamphetamine.

5. The other police officer, Detective Senior Constable Joshua Critchley, took the lady’s wallet from Mr Cvijanovic and put it on the bonnet of the offender’s car. When he did so, a small resealable bag fell out of the wallet. That bag contained 0.26 grams of methylamphetamine. It is agreed that the wallet was in fact the offender’s rather than one belonging to Mr Cvijanovic. The 0.08 grams of methylamphetamine removed from her bra and the 0.026 grams of methylamphetamine found in the offender’s wallet are the matters which I am asked to take into account on the Form 1.

6. Senior Constable Bock searched the driver’s seat foot-well of the car. She found the resealable bag which she had previously seen the offender drop on the floor. That bag contained 5.09 grams of methylamphetamine, with a purity of 78.5%. That is the substance of the charge contained in the indictment. The small amount of methylamphetamine is 1 gram, the trafficable quantity is 3 grams, the indictable quantity is 5 grams, the commercial quantity is 250 grams and a large commercial quantity is 500 grams. It can, accordingly, be seen that the amount of methylamphetamine found in the bag that was recovered from the driver’s seat foot-well was only slightly over the indictable quantity, but was more than the trafficable quantity, in fact it was approaching twice the trafficable quantity. However, it was substantially less than the commercial quantity.

7. A further search of the offender’s vehicle found a larger resealable bag containing a number of small resealable bags all of which were empty. That was also found in the driver’s side foot-well. On the driver’s seat was a white mobile phone, but mobile phones are so ubiquitous and so common that nothing can be inferred from that. However, in the rear passenger foot-well police found an operational set of digital scales. The offender admitted today that they were the purpose of weighing drugs. She told me the purpose for those scales is to ensure that she had not been “ripped off”. But an inference can be drawn that a reason for having a large number of small resealable bags was to re-package the larger quantity of methylamphetamine into smaller bags and the purpose of that is usually for supply. That would also explain more appropriately the set of scales. In other words there is strong evidence that the drugs were actually for supply so that I cannot use the offender’s evidence to find that the drugs were not for supply, that is the deemed supply has not been proven to inaccurate. I cannot accept that the drugs were for the personal use of the offender. Even her evidence is that she was to share those drugs with Mr Cvijanovic so that they were in fact to be supplied by her to him.

8. The offender was arrested and conveyed to Manly Police Station. At the police station the offender exercised her right to be silent. She was then charged with this matter. She was placed on police bail, that required her to attend the police station every day to report. This appears to be an increasingly common practice of the police. The purpose of bail is to ensure that people will turn up when their matters are listed for trial. Reporting on bail is not to be seen to be some form of punishment effected before a conviction is recorded. There is no suggestion that the offender was a flight risk. However shortly after being arrested, charged and bailed the offender fell pregnant and she was delivered safely of her fourth daughter on 24 November 2017. In the middle of 2017 she failed to turn up to report as required by her bail undertaking. That led to the issue of a bench warrant by the Local Court. The offender was arrested and again placed on bail, but again was required to report daily.

9. The offender was committed for trial by the Downing Centre Local Court, by the Chief Magistrate Henson DCJ, on 10 August 2017. However, in 2018 prior to her trial, the offender failed to appear before this Court, and Syme DCJ issued a warrant for her arrest. When arrested the offender was again placed on bail requiring her to report daily to the police. Those conditions of bail continued until 12 February this year when I varied them after the offender pleaded guilty. The conditions of bail were onerous and, in my view, completely unnecessary. It is understandable that the offender might not be able to report daily when pregnant. It appears to me from reading the endorsements on this Court’s file that there may have been a breakdown in communication with lawyers in 2018 which led to the issuing of the bench warrant by Syme DCJ. The onerous conditions of bail are a matter that can be properly taken into account in the sentencing exercise. I propose to do so.

10. As I have already stated, the offender is a lady of prior good character. She is now 39 years old. She has no prior conviction of any nature including a traffic offence. Her prior good character is also something that must be taken into account.

11. The offender’s personal circumstances are not straight forward. She was born in January 1980. She is currently 39 years old. At the time of the offence now in question she was 36 years old. Is extremely rare for a lady aged 36 to commit a criminal offence. The offender was born in the northern beaches area of Sydney and grew up there. Her youth was spent living with her grandparents in her grandparent’s house with her extended family which included her mother and younger brother. The offender left Killarney High School in year 9 at the age of 15. She did not obtain the school certificate. However, her first job was as a carer looking after children and she has worked in the childcare industry for many, many years since that time. She has been able to describe her work in childcare as being a teacher. She must have commenced doing that work at the age of 16 or 17.

12. It is to be noted that the offender did not grow up with her father. According to history obtained by a psychologist who interviewed her on 15 March this year, the offender’s father left the home before the offender’s birth. The offender’s father has two other children but the offender does not have any contact with either of them. The offender lived with her grandfather in his home until he died when she was 35 years old, that is four years ago. She was then homeless for two years during which she lived for a period with a Mr Price and then with a lady friend. She is now living at Collaroy with some of her children.

13. The offender has four daughters. The eldest Jayde is now 20 years old. Jayde lives with the offender. Jayde is working in a shoe shop at Warringah Mall. Jayde’s father’s Christian name is Ricardo. The offender’s next daughter Melina who is aged 17. Melina has a full sibling Natalie who is currently 13. The father of Melina and Natalie is a gentleman known as Joe. Melina is now living with Joe. She is at high school and working part time. Natalie lives with the offender and Jayde and is currently attending the Forest High School. The offender’s youngest child, Sasha, was born on 24 November 2017 and is 16 months old. Sasha’s father is Dane Cvijanovic the other occupant of the offender’s car at the time of her arrest.

14. According to the offender’s evidence today she and Mr Cvijanovic separated shortly after Sasha’s birth. Sasha was taken from the offender’s care immediately after her birth by the Department of Family and Community Services. From the evidence I have heard it would appear that the reason for doing so was because of domestic violence perpetrated by Dane on the offender and because Dane had a drug habit.

15. In addition to the current proceedings hanging over the offender’s head until today, she has had a dispute with Family and Community Services hanging over her head in the Children’s Court. Those proceedings are listed for further hearing in the Children’s Court on 11 April this year. It would appear from what I have been told that the offender has not been successful in establishing that there is a realistic possibility of the child Sasha being restored to her. I have been told that what still needs to be determined by the Children’s Court is whether the child should be left in the care of her maternal grandmother Susan Murray in whose case she is currently, or whether care should be returned to the Minister. Of course whatever decision is made by the Children’s Court might be the subject on appeal to this Court. There is only one document before me from the Family and Community Services, that is a “Permanency Planning” document for Sasha which indicates that there was as at 27 March 2018 a realistic possibility of Sasha being restored to the offender. The program contained in it indicates that Sasha ought to have been returned to the offender in late September or early October 2018, but that has not occurred. Sasha is currently living with her maternal grandmother at Ettalong and the offender is clearly living at Collaroy with two of her other children.

16. About six to eight months prior to the offence of 16 December 2016, the offender had started a new role as a cleaner, as I understand it, as a contract cleaner. She had that work at the time of this offence. As I understand it since this offence the offender has had very little work, no doubt because of her pregnancy and then delivery but since that time the chaos in her life caused by these proceedings and the proceedings in the Children Court.

17. No doubt the offender wishes to have Sasha restored to her. That is for others to decide. However, she still has the care of her 20 year old daughter and her 13 year old daughter. There is always a possibility that her 17 year old daughter may yet return to her care. Even adult children need care, says one with a 28 year old son living at home. In other words the offender has responsibilities and no doubt to assist in her care ought get herself back into the workforce.

18. The psychologist’s report before me from Ms Rosara Squirchuk is riddled with error. In fact the errors are so bad one wonders whether it was worth the paper on which it has been written. It was necessary to adduce evidence from the offender in order to supplement what the report does not contain and to correct the numerous errors contained in it.

19. One matter that the report did not contain was any history of the offender’s use of drugs, obviously relevant in a case of drug supply. That history was reduced to writing and confirmed by the offender in her oral evidence. The writing is exhibit 5. At the age of 16 years the offender experiment in smoking marijuana, she did so frequently. That is so common as to be completely devoid of any significance. At the age of 17 she started using ecstasy recreationally at night-clubs whilst partying. On average she took one ecstasy pill once a month until into her 20s. At the age of 35 years she first started using methylamphetamine. That was when she was in a relationship with Radoslav Prica, who she told me was himself a drug user. She experimented with methylamphetamine on two or three occasions. Mr Prica initially told her that she was only smoking ecstasy. In those circumstances why is it that the offender had so much methylamphetamine on her on 16 December 2016 at a time when her relationship with Mr Prica was over and she was in a relationship with Mr Cvijanovic?

20. The offender told me that she had decided to use methylamphetamine with Dane to see what it would be like. Before she used it again she was detected with the drug as the facts of this case show. One might be sceptical about that but one thing that the facts document, exhibit 4, tells me is that the Department requested the offender to attend the Royal North Shore Community Health Centre for a drug and alcohol assessment. The offender did so and completed the assessment.

21. However, based upon what she herself disclosed and how she presented, the health centre counsellor assessed that she did not require ongoing counselling or support regarding drug use. Her evidence is that she has never been addicted to any substance and has not had in her possession any prohibited drug since the date of this offence. I accept that.

22. Often those found with the amount of methylamphetamine that the offender was found with are involved in drug trafficking mainly to obtain money to support their own drug habit, or having obtained a large quantity of drug selling part of that large quantity in order to have a cheaper supply of drug. This is not such a case.

23. Accordingly I have before me a lady of prior good character, a lady with significant responsibilities, a lady who needs to re-join the workforce to support herself and her children, which may assist her in maintaining her access to Sasha and perhaps obtaining the right for Sasha to reside with her. A lady whose possession of drugs on the evening now in question may be seen as foolhardy, stupid, absurd, but such failures are common in human beings. I have a lady who has had onerous conditions of bail but, to an extent, they have been perpetuated by herself by failing to appear in the Local Court and in this Court albeit that those failures may well be explicable.

24. There was really little difference between what the parties submitted to me. The offender, through her Counsel, asked me to impose a conditional release order pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. I am asked to impose as additional conditions of that order that the offender abstain from drugs, and that she participate in any rehabilitation or treatment program directed by Community Corrections. That condition is sought because the psychologist suggests that the offender needs to attend further programs on domestic violence, a subject to which I shall shortly turn. It is also said that she may need some drug and alcohol relapse prevention and some sessions in self-esteem and self-worth. If the Department is able to do so, it ought provide such rehabilitation or treatment to the offender as part of a Conditional Release Order.

25. The Crown seeks a Community Corrections Order containing exactly the same conditions. The difference that has been agitated is whether a conviction ought be recorded or not.

26. Before going to that issue I should refer to the question of domestic violence. The offender told me of five relationships with men in which she has been involved. The second relationship was with the man called Joe, the father of Melina and Natalie. According to the offender he engaged in domestic violence during their 12 year relationship. The offender referred to the nature of that violence as “a roller coaster” meaning sometimes the relationship was up and at other times the relationship was down. The inference was that whenever things went bad in the relationship there might be domestic violence. Her fourth relationship was with Radoslav Prica whom I have already mentioned. That was a violent relationship. During it the offender and her daughters were exposed to domestic violence and during that relationship the family left their late grandfather’s home and the daughters went to live with their respective fathers for a period. There was violence which led to serious charges being laid against Prica and to his imprisonment. Her last relationship was with Dane Cvijanovic and again that relationship was I have earlier indicated marred with domestic violence.

27. It is unfortunate that the offender should enter into relationships with men who engage in domestic violence but that may well be because she did not have the advantage of growing up knowing her own father and knowing how men ought behave. That of course has led to one of the difficulties that she has with the Department of Family and Community Services. That is the reason why Sasha was taken from her care.

1. As is recorded by the exhibit 4, the offender was asked to engage in “Expect Respect” a domestic violence support program run by the Manly Warringah Women’s Resource Centre, a course that went for six weeks. The offender completed that. She was then asked to engage in individual domestic violence counselling and she started doing that but gave that individual counselling up when she found out that she was not to regain custody of Sasha. That clearly dispirited her and again was the reason for giving up that course. The offender may well be encouraged to recommence that individual counselling: it is something that may lead to assistance from Community Corrections under a rehabilitation/treatment program condition.

2. I return to the issue debated, ought a conviction be recorded? It is conceded by the offender, through her Counsel, that in the vast majority of drug supply offences convictions are recorded. One must distinguish between the mere possession and use of drugs and drug supply. The latter is a far more serious offence as the maximum penalty for this offence, 15 years imprisonment, shows.

3. There is a debate in the community as the proper course of conduct to be followed with regard to the consumption of drugs which are currently proscribed. It is not this Court’s role to enter into that debate. The Court’s role is to apply the law as enacted by Parliament. It is Parliament that sets policy, not the Courts and not the press.

4. It is the Court’s experience that illicit drugs ruin lives. Persons become addicted and, to maintain their addictions, have to obtain a source of funding for their drug habit. That funding is found through offences such as breaking, entering and stealing, robbery, armed robbery and theft. Were there no illicit drug problem, there would be very little crime. Illicit drugs destroy individuals lives, they also disrupt and cause major problems with families. Drug supply is a very serious problem. I must acknowledge that. The offender said on oath these drugs were merely for use by herself and Mr Cvijanovic. That is possible, equally it is possible they are to be supplied to others as I have already pointed out. This is a case not of actual supply or obvious intention to supply but a deemed supply, that is I am not persuaded that the deeming provision has been overcome.

5. However, bearing in mind all the other circumstances to which I have referred and bearing in mind that a conviction might interfere with the offender’s ability to find work in the workforce, in particular working again with children, that it could possibly interfere with her attempts to obtain the residence of Sasha with her, and because of the general provisions of s 10, this lady’s prior good character and the circumstances in which the offence was committed I believe that this is a case in which I ought not record a conviction. Accordingly the matter will be dealt with under s 10(1)(b).

6. Another matter which I should mention is this. The offender pleaded guilty without there being the need for a trial by jury. For that the offender is entitled to a utilitarian discount of the sentence otherwise to be passed upon her. On the law as it stood at the time of the commission of this offence that discount should be in the order of 10% only. Were the matter to be dealt with by a custodial sentence, it appears to me that a starting point might be 18 months imprisonment, a 10% discount of that is 16 months and that, in my view, ought govern the period of the conditional release order. I ought require her to attend Community Corrections not for the purpose of supervision but to seek to attend any available and suitable programs.

7. Jessica Murray, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but having regard to your prior good character I am satisfied that it is expedient to release you on a conditional release order. I order that you be released on a conditional release order for a period of 16 months from today. Conditions of the order are as follows:

1. you are not to commit any offence;

2. you are to appear before the Court if called upon to do so at any time during the term of the conditional release order;

3. you must participate in any rehabilitation or treatment program directed by Community Corrections, and;

4. you must abstain from drugs.

You are to report to the Community Corrections officer at St Leonards within 14 days.

WOODS: May I please the Court.

35. HIS HONOUR: Charge numbered H65103785-003 is withdrawn and dismissed.

NIEVAS: Thank you your Honour.

36. HIS HONOUR: Now what’s the confiscation order?

NIEVAS: There is a confiscation application your Honour with respect to the money that was found in the wallet of the offender, its approximate - well it is the sum of--

HIS HONOUR: No it wasn’t found on the offender it was in Dane Cvijanovic’s hand until, unless you can put some evidence that it actually belonged to this lady as distinct from Mr Cvijanovic.

NIEVAS: I believe it’s in the agreed facts that that wallet was the offender’s wallet.

WOODS: It’s in the agreed facts that it was her wallet but the cash is not connected to the wallet necessarily.

HIS HONOUR: They observed Mr Cvijanovic to be holding a large wad of cash and a female wallet. The cash was largely comprised of one hundred fifty dollar notes. Now I said based upon what I said in the ruling on the voir dire that the cash amounted to $1950. The point is this, it wasn’t in the wallet which belonged to the offender, it was in Mr Cvijanovic’s hand. Now our law of ownership is based on possession. It was in his hand, he was the possessor of it unless you can prove otherwise he is the owner of it. Now unless you can prove that the offender admitted that it was her money then I can’t order its confiscation.

NIEVAS: Quite.

[Submissions]

37. HIS HONOUR: The orders are, the oral application for a confiscation order is dismissed. I permit the Crown to file and serve a notice of motion seeking such an order formally and Dane Cvijanovic is to be joined as a respondent to the notice of motion and is to be served with it. Any evidence to be relied upon by the Crown is to be on affidavit.

HIS HONOUR: Anything else?

WOODS: Yes thank you your Honour, nothing on my part.

NIEVAS: That finalises, yes your Honour.

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Decision last updated: 21 November 2019